Section 75 - Fees

Overview

Section 75 of the Act allows public bodies to charge fees for certain services which they provide in the processing of formal Freedom of Information (FOI) requests and provides guidance in assessing or waiving such fees.

(4) If an applicant is required to pay a fee for services under subsection (1), the head of the public body

must give the applicant a written estimate of the total fee before providing the service, and

may require the applicant to pay a deposit in the amount set by the head of the public body.

(5) If the head of a public body receives an applicant's written request to be excused from paying all or part of the fees for services, the head may excuse the applicant if, in the head's opinion,

the applicant cannot afford the payment or for any other reason it is fair to excuse payment, or

the record relates to a matter of public interest, including the environment or public health or safety.

(5.1) The head of a public body must respond under subsection (5) in writing and within 20 days after receiving the request.

(6) The fees that prescribed categories of applicants are required to pay for services under subsection (1) may differ from the fees other applicants are required to pay for them, but may not be greater than the actual costs of the services.

Summary

Section 75 authorizes public bodies to charge fees for certain services when processing requests made under the Act, and provides guidance in assessing or waiving such fees. Fees may be charged only for the services specified in section 75(1)(a) through (d). Fees cannot be charged for:

The public body is required to provide the applicant with an estimate of the fee assessment before providing the services. The head of a public body may waive the fees or a portion thereof if, in his or her opinion:

the applicant cannot afford the payment;

it is fair, for any reason, to excuse the payment;

the record relates to a matter of public interest, including the environment, or public health or safety.

The actual cost of services may be charged to commercial applicants, as prescribed in the Regulation.

Policy

Fees are not a barrier to access to information. Public bodies can charge fees for some time spent searching for records, but cannot charge fees for reviewing records, or for severing information from records. For services that are subject to fees, the Act provides a means for waiving those fees.

Where fees fall below a certain threshold, public bodies may waive them. Public bodies are encouraged to set a threshold under which fees will be waived; however, public bodies may refuse to waive fees under that amount as determined by the head of the public body. Local public bodies may set their own thresholds for fees.

The party seeking a fee waiver bears the burden of providing reasons why the fee should be waived. A simple statement by the applicant that he or she cannot afford the fee is not sufficient.

Public bodies can charge fees only for providing the services that are listed in subsection 75(1). They cannot charge fees for providing any service in the processing of a request under the Act that is not listed in subsection 75(1).

Public bodies cannot charge fees where the applicant is asking for his/her own personal information under the Act. If a request is not made under the Act, public bodies may only charge applicants for access to their own personal information where there is express authority in an enactment to do so.

For searches taking more than 3 person-hours, the Regulations specify the hourly fee that public bodies may charge.

Under paragraph 75(1)(b), where an applicant asks to examine a record rather than receive a copy of the record and it is not possible to provide access to the original record, the public body may charge a $ .25 per page copying fee for the time spent copying a record in preparation for the applicant to examine the record.

Where shipping and handling costs are involved in processing an applicant’s request, those costs may be passed on to the applicant.

Schedule 1 of the Regulation under the Act specifies certain categories of applicants who may be charged fees different from those charged other applicants.

Local public bodies may establish their own fee schedules by bylaw or other legal instrument, such as resolution. If a local public body has not established its own fee schedule, the fee schedule established in Schedule 1 of the Regulation under the Act applies.

If the total cost of processing the request is higher than the fee estimate, the public body requires the applicant to pay the higher cost unless, in the opinion of the head of the public body, compelling reasons exist for not doing so. All fee estimates will state that, "All reasonable efforts have been made to generate an accurate estimate; however, the applicant will be required to pay the actual cost whether it is higher or lower than the estimate." In addition, the applicant should be informed when it is determined that the actual cost will exceed the estimate prior to providing any further service.

If the final cost of processing the request is less than the fee estimate, the public body charges the applicant the actual cost, not the original estimated cost.

Where the total processing cost is less than a deposit already paid by the applicant, the public body shall refund the difference between the estimated cost and the actual cost to the applicant.

The fee structure set out in Schedule 1 of the Regulation under the Act applies only to services that public bodies provide in processing formal requests for information under the Act.

If an applicant wants to appeal the requirement to pay a fee, but also wants immediate access to the requested records, the applicant should pay the fee estimate first. If the Commissioner determines the fee was unjustified, the public body may be required to refund the fee, in whole or in part.

Procedure

Before providing any services to an applicant, that is, before incurring any chargeable costs in processing a request, the public body does a preliminary search for the requested records and estimates the total amount of time in excess of three hours it will take to locate and retrieve the records. The public body also estimates the number of pages that will be copied and released. A more detailed description of the criteria for fee estimates is found in the Guidelines for Determination of Fee Estimates document.

The public body then prepares an estimate of the total fees that apply to processing the request.

The public body gives the applicant an estimate of the fee that will be charged for services. The fee estimate provides a breakdown of the individual costs being charged for each service. The public body also informs the applicant why the fee is necessary. The applicant may revise the request to lower the estimated cost or request a waiver of the fee.

The reasons for a decision to waive or to charge a fee are recorded, provided to the applicant and attached to the request file.

At this point, the public body does not require the applicant to pay the entire fee but may request a deposit if the fee estimate is greater than $200. The deposit must not exceed half the estimated fee.

After the public body finishes processing the request, it asks the applicant to pay either the total fee or the balance of the fee, whichever is applicable. It does not provide access to the records until the applicant has paid the fee. The 30-day time limit is suspended pending payment of the fee.

In cases where public bodies receive requests from members of the legislature or opposition caucuses that result in a fee estimate, the member or Caucus may request payment by the legislature.

It is government policy for public bodies to require payment of fees before releasing the records requested. The Legislative Comptroller, who manages payment for requests from the legislature, has agreed to the following process:

The public body sends the requester a fee estimate letter which includes two signature blocks – one for the requester and one for the Legislative Comptroller.

If the requester intends to pay the fee, he/she signs the original fee estimate letter and forwards it to the Legislative Comptroller for signature.

The Legislative Comptroller indicates commitment to pay by signing the original fee estimate letter and returning it to the public body.

Once the public body has received the letter signed by the Legislative Comptroller, it can begin to process the request.

When the records are ready for release, the public body sends an invoice to the Legislative Comptroller, along with a copy of the signed fee estimate letter.

The records will be released to the requester when the public body receives the cheque from the Legislative Comptroller.

After collecting any fees in relation to processing requests under the Act, the public body deposits them in the appropriate revenue account: for ministries, fees are deposited in the consolidated revenue fund; for provincial agencies not covered by the Financial Administration Act, the fee is dealt with in accordance with approved financial policies. Local public bodies establish their own policies and procedures regarding the disposition of fees.

Any person who is required to pay a fee for access to information under the Act may ask the Commissioner to review the head’s decision to require a fee under section 42 and section 52. After reviewing the circumstances surrounding the charging of a fee, the Commissioner may confirm, excuse or reduce the fee or order a refund under section 58(3)(c).

Interpretation

Interpretation Note 1:

Section 4(3) (Information rights) of the Act indicates that the right of access to a record is subject to the payment of any fees required under section 75.

Subsection 71(1) allows public bodies to make records available to the public on demand without a formal FOI request.

The Commissioner may also reduce or refund a fee if the public body fails to respond to the applicant’s request within the time limit specified in the Act.

Categories of fees

Schedule 1 of the Regulation under the Act sets out the fees that public bodies can charge for specific services.

Interpretation Note 2 (Section 75(1)(a)):

Locating, retrieving and producing a record

The Schedule of Maximum Fees gives the applicable hourly rates for manual searching, flagging and extracting files, whether paper or electronic, and for computer time and programming in order to process machine readable records.

Manual search time covers the personnel time involved in locating and extracting the record. It includes time spent examining indexes, file lists and listings of records, whether on computer or paper, time spent flipping or otherwise searching through files to locate the records which will fall within the scope of the request and time spent flagging and extracting the records from the files.

In some instances, a response to a request may require computer programming and processing time, for which the public body may charge. The Regulation specifies the fees that public bodies may charge for computer time. There may also be other costs associated with processing a record from machine readable records. The public body may charge fees for those services that are set out in the Regulation.

Example

Staff time developing a computer program to produce a record or for the cost of disks or tapes.

Public bodies cannot charge for the time it takes staff to review records (to determine if an exception applies), to sever information from a record or to supervise an applicant while he or she views original records.

Interpretation Note 3 (Section 75(1)(b)):

Preparing the record for disclosure

This phrase includes the time spent photocopying, assembling, collating and stapling. Cost-per-page copying fees apply only to documents given to (not just viewed by) the applicant. This does not include the time spent severing.

Example

An applicant requests an opportunity to view a report that contains personal information of a third party. The third party’s personal information must be severed from the report. The public body copies the original report to produce a working copy. The public body severs the working copy and then makes a final copy to show the applicant. The applicant may only be charged a fee for the time it takes to photocopy the final copy of the report.

Interpretation Note 4 (Section 75(1)(c)):

Shipping and handling the record

Shipping charges include charges for delivery of the records as agreed to by the applicant.

Handling includes time spent physically putting the response package together. It does not include time spent preparing letters or reviewing records.

Interpretation Note 5 (Section 75(1)(d)):

Copying the record

A "per page" fee means the amount that can be charged for each side copied. For example, if the copy is double sided, the charge is for two pages. The copying fee depends on the medium of the original records and the method of reproduction used.

A public body charges a commercial applicant for the time staff spends copying records in addition to the cost per page. The public body charges non-commercial applicants only for the number of copies disclosed and not for the staff time spent copying.

Public bodies do not charge for copying records where copying is necessary for the processing of the request (e.g., where copies are needed for consultation with third parties or in documenting the application of exceptions). A copying fee is assessed only for copies that are disclosed to the applicant.

Interpretation Note 6 (Section 75(4)):

Fee estimates and deposits

The 30-day time limit is suspended from the date on which the fee estimate (with the request for deposit, if applicable) leaves the public body. The time limit starts again on the day that the public body receives the deposit or the applicant’s reply agreeing to pay the fee, whichever is applicable.

Interpretation Note 7 (Section 75(5)):

Waiving fees

There will be some instances when public bodies waive fees, for example, where the applicant is unable to pay the required fee. In other instances, the release of the information will benefit the public at large and the public body cannot justify requiring a fee payment from a single applicant. The decision to waive or reduce a fee is made for each request individually, based on what is fair and equitable in the circumstances of the case. The party seeking a fee waiver bears the burden of providing reasons why the fee should be waived. A simple statement by the applicant that he or she cannot afford the fee is not sufficient.

In determining whether or not a fee should be waived, the head of the public body considers all of the circumstances of the case including but not limited to the following factors:

Whether the payment will cause financial hardship for the applicant;

The extent to which the actual cost of providing the service varies from the fee that may be charged under the Act. If the actual cost is considerably more that the fee, the public body may be less inclined to waive the fee, subject to other considerations;

Whether the applicant is to be granted access to the records requested. If the records are subject to severing or some of the records are not being released, the public body considers the extent to which the released records answer the applicant’s request and considers giving a partial or full fee waiver;

Whether the amount of the fee is more or less than the minimum processing threshold;

Whether the record relates to public health or safety and release is in the public interest; and,

Whether the record relates to the environment and release is in the public interest.

Interpretation Note 8 (Section 75(6)):

Categories of applicants

The fees that these categories of applicants may be charged cannot exceed the actual cost of the service.

Example

A business and an individual make the same request for access to specific records. The business may be charged more for copying than the individual, if the business applicant is designated as a separate category from an individual applicant under the Regulation.

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